On the Separation of
Church and State
February 28, 2021
I’m a Christian. Indeed, I’m an
ordained Christian. A lot of people today assume, I think, that that means I
oppose separation of church and state. After all, vocal Christians among us
complain all the time that the state won’t let them do things they want to do,
like have public school teachers lead prayer in class or post the Ten
Commandments in the local courthouse. We’ll return to those two issues below.
Secular critics of religion say Christians are trying to impose a Christian
theocracy on the country. Some people see no reason why the state shouldn’t
support churches and especially church schools. We’ll return to that issue too.
The United Kingdom has an established church, after all, and also has broad
religious freedom. Surely all people of faith would like for the state to
support their churches even if that meant it had to support other people’s
religious institutions too. Well, actually, not all of us would. I’m an
ordained Christian, and I believe strongly in the need for and the benefits of
separation of church and state both for the state and for the church. That
belief is what I want to write about here.
The law on separation of church and
state in the United States is grounded in the First Amendment to the US Constitution.
That Amendment reads in relevant part, “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof….” The
federal courts, most importantly of course the US Supreme Court, have created
an extensive body of law grounded in that language that actually goes far beyond
Congress passing no law. The law takes the First Amendment to mean basically
that church and state must remain separate even though the First Amendment
doesn’t use the phrase separation of church and state. The Amendment has two
relevant phrases, “no law concerning an establishment of religion” and “or
prohibiting the free exercise thereof.” These provisions are know in the law as
the establishment clause and the free exercise clause. There is extensive case
law on both of them.
With few exceptions, including some
very recent ones, the establishment clause has been interpreted to mean that no
governmental entity may do anything that amounts to state endorsement or
support of a religion or that even in some way favors religious institutions
over secular ones. As with any constitutional right, things happen that appear
on the surface to violate the establishment clause but that the courts allow. Our
currency says “In God We Trust.” Both houses of Congress employ chaplains,
usually Christian ones of some sort, and those chaplains say prayers before
sessions of Congress. In the 1950s we added the phrase “under God” to the
Pledge of Allegiance, and members of Congress recite that Pledge that way all
the time. Most basically however, the establishment clause (which along with
the free exercise clause applies to the states through the Fourteenth
Amendment) means that we have no established religion in the US the way they do
in the United Kingdom and some other nations. The Christian right may (wrongly)
insist that we are a Christian nation and that the US Constitution somehow
expresses Christian values rather than the rationalistic values of the
Enlightenment that it actually reflects, but the establishment clause does a
pretty good job of keeping governments in this country secular.
Religious schools present an
interesting issue under the establishment clause, especially in a charter
school system. In such a system a public school district pays people or
organizations that have set up and run schools that meet the requirements for
public education. Sometimes some of those schools are set up and run by
religious institutions, and their curriculum includes religious instruction. The
establishment clause would seem to dictate that the public school district may
not pay public funds to such a school. But those schools are carrying out the
district’s mission of educating children, and the district pays money to other,
secular charter schools. Does the district not paying religious charter schools
constitute discrimination on the basis of religion or impair the free exercise
of religion? It’s a tough question to answer. I believe that public money
should not be used to support religion in the form of religious charter schools.
The current Supreme Court, dominated by conservatives, is inclined to say that public
school districts must pay religious schools the same as it pays secular charter
schools.
That example of an issue under the
First Amendment raises the free exercise clause of the First Amendment as well
as the establishment clause. The basic rule there is that the state may in no
way interfere in the beliefs or, except in rare cases that have legal
implications, in the internal workings of any religious institution. The state
may, however, prohibit actions by a religious institution or by religious
people if the state has a sufficiently compelling state interest in doing so.
Perhaps an example will help. In 1878 the US Supreme Court decided the case of Reynolds
v. US. In that case a state government had outlawed bigamy. Members of the
Church of Jesus Christ of Latter Day Saints, popularly known as the Mormons, argued
that their religion authorized or even mandated bigamy and that their free
exercise rights protected them from prosecution under the anti-bigamy law. The
Supreme Court rejected that argument. It found that the state had a compelling
state interest in regulating marriage and could therefore outlaw the act of
bigamy without interfering with the Mormons’ beliefs. Under the free exercise
clause we can believe whatever we want. The state can regulate conduct even if
the conduct is grounded in religion if the state has a sufficiently compelling
state interest relative to the conduct.
As the example of Reynolds v. US
shows, question under the two church-related clauses of the First Amendment
often involve a weighing of conflicting interests and values. Doing that can be
difficult, but judges, especially federal judges, do it often. The cases in
which they must do it are ones in which a judge’s personal beliefs and
preferences can play a particularly important role. At the Supreme Court at
least those cases are rarely decided unanimously. The establishment clause and
the free exercise clause of the First Amendment often give rise to such cases.
One issue that has often raised
what many see as a conflict between the establishment clause and the free
exercise clause has to do with prayer in public schools. That issue is also one
that demonstrates how misunderstood the First Amendment’s religion clauses
often are. Conservative Christians frequently complain that the public schools
have banned prayer. They complain that public school teachers can’t start a
class with prayer. They complain that there are no public prayers at school
sporting events or school assemblies. They believe that these rules by the
public schools violate their free exercise rights, or perhaps at least the free
exercise rights of the teachers.
They’re wrong about that. To
understand the issue we must make an important distinction between prayer led
by a public school employee and prayer
led by a group of students for students who want to hear or participate in it.
Any public school employee leading prayer for a school generally or for any
school activity violates the establishment clause. Any public employee leading
prayer which others have no choice about hearing constitutes as a matter of law
a state endorsement or at least state support for a particular religion in
violation of that clause. Even a very general prayer to God that uses no language
specific to any particular religion constitutes state endorsement of theism
over atheism and is therefore impermissible under the establishment clause. That’s
why there is never a prayer over the PA system at sporting events, for example.
It’s an entirely different matter
when a group of public school students want to gather voluntarily for prayer.
That’s where the free exercise clause comes in. Many public schools actually
get this one wrong. They prohibit all prayer on school property. A public
school may not, however, stop an individual student from praying nor may it
prohibit a group of students from praying as long as what the students do does
not disrupt the proper functioning of the school. Students may not leave class
to pray, although as I recall when I was in elementary school so many decades
ago Catholic students were let out to go to the local Catholic school for a
period of religious instruction. We didn’t worry too much about the First
Amendment back in those days. When a public school prohibits students from
praying on their own in appropriate places at appropriate times it violates
those students’ free exercise rights.
A somewhat similar issue that
raises both establishment and free exercise issues is the desire of many
Christians to post the Ten Commandments in the local courthouse. On its face
doing that would violate the establishment clause. The Ten Commandments come
from the sacred texts of two great
religions, Judaism and Christianity. Proponents of putting them up in
courthouses say that doing so does not violate the establishment clause because
the Ten Commandments are just general statements of broad moral principles to
which no one can really object. Actually, the Ten Commandments aren’t that at
all, but I won’t go into that issue here.[1]
The important point for our purposes is that however broad and general the Ten
Commandments may be they are religious statements. They come from the sacred
scripture of two different religions. They say they come from God. The proper
ruling in this case is obvious. The courts have had no trouble prohibiting the
display of the Ten Commandments on public property because displaying them
constitutes state endorsement of them and thus violates the establishment
clause of the First Amendment.
Sometimes proponents of things like
prayer led by public school employees or posting the Ten Commandments in the
courthouse say, well, nearly everyone in our community is Christian, so where’s
the harm in either of those measure? This argument completely misunderstands
the purpose and function of our constitutional rights. The Constitution does
not establish those rights for the benefit of a majority of a population. It
establishes them precisely to protect minorities among the population. This
function applies to all of our constitutional rights, but it appears most
clearly in connection with the right of free speech. No society needs a
constitution to protect anyone’s right to say what is popular and government
approved. All societies need a constitution to protect everyone’s right to say
what is unpopular or critical of the government. This function of the right of
free speech is sometimes expressed in the saying “I disagree with what you say,
but I will defend to the death your right to say it.”[2] No
one would stop me from saying America is the greatest country on earth. That
bromide is very popular among us. Someone might try to stop me from saying that
it isn’t the greatest country on earth and enumerating facts to support that
statement. A private person could stop me from saying it on private property
because that person doing so involves no action of the state. The state cannot
stop me from saying it anywhere where I am able to say it because however
unpopular what I say might be, the First Amendment guarantees my right to say
it and stops any state entity from prohibiting me from saying it. The same
principle applies with regard to state support or endorsement of any religion
or religious statement. Nearly everyone in a particular community may support
the statement and the state’s endorsement of it. The First Amendment isn’t
there to protect them in this instance, although it would protect them if they
needed protection from the state endorsing or supporting a religion that isn’t
theirs. The First Amendment is there to protect those in the society who do not
accept religion endorsed or supported by the state and don’t want the state imposing
it upon them. That a majority of people may believe or support certain things
is irrelevant to an analysis of rights under the First Amendment.
One of the purposes of the
establishment clause is actually to facilitate people’s use of the free
exercise clause. Any state support for or endorsement of one religion militates
against all other religions and against atheism as well. Nations like the
United Kingdom with an established
national church may allow broad freedom of religion, but they also may
not. Take Russia for example. Unlike its old status under the tsars, the
Russian Orthodox Church is not officially established as the Russian national
church. The tsar was the head of the church, President Putin isn’t. The Russian
Orthodox Church is nonetheless the de facto established national church in
Russia. Since the fall of the Soviet Union it has gotten the Russian government
to enact laws similar to those in effect under the tsars that give it a
privileged position relative to any other church. Those laws make it difficult
for any other faith to function in the country, especially if it is a new
church start coming from outside the country.
Or take Iran as an even more
extreme example. Iran is a Shi’ite Muslim theocracy. The state is officially
and aggressively Muslim. The Iranian constitution establishes the state as a particular type of Islamic state. It also
says that Zoroastrians, Jews, and Christians may function in the country, but
as a practical matter it is difficult for them to do so. Religions not given
the constitutional right to function such as Baha’i are oppressed. The
condition of religious freedom in Iran has raised strong concerns with international
organizations including the US Commission on International Religious Freedom.
That’s what can happen when one faith is established de jure or de facto as the
national religion of a country. The First Amendment assures us that that won’t
happen here.
Separation of church and state
actually fosters the health of the church. To see how true that is just look at
what has become of the Christian churches where they receive financial support
from the state. In the United Kingdom with its established Anglican Church 8%
of the people regularly attend weekly religious services. In Germany, where
both Protestant and Catholic churches receive money from the government, the
figure is 10%. In the US it’s 36%. In Russia with its de facto established
Orthodox Church the figure is 7%, although over seventy years under an aggressively
atheistic government no doubt plays a role in keeping that figure low.[3] Clearly
establishment and governmental financial support do not lead to healthy
churches. We Christians are much better off without them than we would be with
them.
Finally, of all people Christians
should support separation of church and state and the religious freedom it
facilitates. Christianity, when properly understood, is a religion of freedom.
In Christ we live in God’s grace and not under any set of rules or laws. We
respect the right of every person to believe or not to believe according to
their own desires and life circumstances. Faith that results from coercion or
even pressure is not true faith. We believe that God calls everyone to a life
of faith, but God doesn’t call us to force anyone into faith or into church.
Separation of church and state facilitates the freedom and proper functioning
of both state and church. May we never lose our commitment to that principle
that is so foundational for our nation.
[1] For
a discussion of the Ten Commandments see Thomas Calnan Sorenson, Liberating
the Bible: A Pastor’s Guided Tour for Seeking Christians, Revised Edition,
Volume Two, The Old Testament (Briarwood, New York, Coffee Press, 2019),
pp. 78-85.
[2]
This saying is often attributed to Voltaire. It actually comes from a biographer
named Evelyn Beatrice Hall. She wrote it as a paraphrase of what she thought
Voltaire would have been thinking.
[3]
pewform.org. A student at Moscow State University who I got to know back in
Soviet times asked my wife and me if we believed in God. When we said yes, he
said that was the one thing he couldn’t understand about westerners. Soviet
atheism had done its work in him and in most other Russians.
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